A widely praised Supreme Court decision still doesn't fix the broken patent system

A small town in East Texas should see a lot fewer visitors in suits and ties, thanks to a Supreme Court ruling that you can’t file a patent lawsuit anywhere you please in America.

Instead, the court ruled that you must sue the allegedly infringing company in the state of its incorporation. That tosses a wrench into a key part of the business-model machinery behind “patent trolling”:

1) Get or buy a overly-broad patent for an “invention” that may have been around for decades;

2) Threaten to sue random companies (and sometimes their customers) for infringing this patent. Then offer to let them settle for a fee calculated to fall below the cost of litigation;

3) If the targets don’t pay up in advance, sue them in the most patent-friendly court in America;

4) Profit!

That’s a nice living if you can get it. But for companies that have to pay lawyers, a plaintiff or both, it adds up to huge costs—$29 billion in 2011, according to a Cornell Law Review paper—that get passed on to society at large. And while the Supreme Court’s ruling breaks up one part of this scheme, it leaves patent trolls with another friend in the court system.

That docket in Marshall, Texas, drew36% of the patent cases filed in 2016, according to a breakdown by the legal-analytics firm Lex Machina. And you can’t credit that to East Texas being an unheralded hotspot of technology.

As Brian J. Love and James Yoon observed in a recent paper for the Stanford Technology Law Review, “less than 2% of patent suits brought in the Eastern District were filed to enforce patented technology invented in East Texas, and that less than 8% were filed against defendants with a corporate office located in the district.”

The Eastern District of Texas began emerging as the capital of patent litigation back in 2006. Love and Yoon credited that to a combination of factors such as how fast it hands down decisions, how rarely it transfers cases elsewhere, and how often judges let cases go to jury trials.

Companies set up only to collect patents and monetize them through licensing agreements or lawsuits are often scorned as “patent trolls” among tech firms with actual products and customers. Legal experts are more likely to use the clinical phrase “patent assertion entities.”

Love and Yoon found that over 90% of the patent lawsuits filed there came from trolls saying somebody had infringed a tech patent.

They concluded: “Restricting patentees’ ability to file suit in East Texas in the first place may be the single most effective reform available to Congress and the courts.”

One problem solved, others linger

Enter the Supreme Court—after years of inaction in Congress.

Justice Clarence Thomas’s opinion that “a domestic corporation ‘resides’ only in its State of incorporation for purposes of the patent venue statute” should make it drastically harder to catapult a case into East Texas. That has advocates of patent reform uncharacteristically optimistic.

“For a lot of smaller startups, this is really encouraging news,” said Julie Samuels, executive director ofTech.NYC. She noted that the court’s ruling went further than a stalled bill, the VENUE Act, meant to curb the migration of patent lawsuits to this one district court amongthe 94 in the U.S.

Consumer Technology Association CEO Gary Shapiro had a similar reaction. “Small and medium-sized businesses have a fairer chance of fighting against bogus patent extortion attempts,” he said in an e-mailed statement.

Unless and until this appeals court takes the hints coming from the other side of the capital, we’re probably going to see more dubious patent rulings, only some of which the Supreme Court will have time to deal with.